I had packed up my things and was about to turn off the light. That’s when the phone rang here at the CircumcisionLawDesk. The shrill tone of the ring sounded more urgent than usual. I put down my box of Pulitzers and picked up the receiver.

“Hell-” “You’ve gotta write quick, Mister! Gawker ran a story on circumcision and it’s crazy!” I replied that I was too old for this game. Tracking down every circumcision tip had left me a hollow shell of a man. But the kid was insistent. “What about the babies???” Now you listen here, you sniveling punk, I said. I was never in it for the babies. Heck, I never could figure out just what I thought about circumcision. Mutilation, health, hygiene, aesthetics. The whole racket made my head spin. And that’s when the young punk said something that set me on my present course.

“There might be a lawsuit. Some Jews are crazy-mad about a new regulation passed by the City of New York and they’re threatening all kinds of holy hell over it. It’s not that New York is outlawing circumcision. It’s not about that. It’s that… well, it’s that some of these Jewish folks do something.” Out with it! “I can’t… I don’t wanna say… It’s that these Jewish fellas, some of them… Well…”

“… Some of them suck the baby’s dicks.”

In a post on Gawker Friday, Cord Jefferson reported on the backlash to a new rule passed by the New York City Board of Health that requires mohels to get written consent from a baby’s parents before performing a metzitzah b’peh. What’s a metzitzah b’peh, you ask? It’s the ritual whereby the mohel performing a circumcision will suck away the blood after snipping away the foreskin. You know, the ritual that has allegedly been responsible for spreading Type 1 Herpes to at least 11 babies since 2002, killing two and giving brain damage to another two. It’s this ritual, referred to in the law as “direct oral suction,” that the city is trying to regulate through informed consent. Not a ban, mind you. Just informed consent.

And yet, the mildness of the new rule has done nothing to dampen the outrage in affected communities where the religious custom of s’ing the d of a baby is practiced. According to The Jewish Week, metzitzah b’peh is “practiced primarily within hasidic and some non-hasidic haredi circles.” And it is these communities, represented by ultra-Orthodox umbrella group Agudath Israel of America, that have now threatened a lawsuit against the City. And they have some pretty heavy legal hitters on their side. The Jewish Week article on the controversy goes on to note:

Letters to the health department from the law firms of Jones Day and Young Sommer, written on behalf of the International Bris Association (IBA) and Central Rabbinical Congress (CRC) respectively, indicate that any legal challenge to the new regulation will be based on both the free exercise and free speech clauses of the First Amendment, and will apparently rely heavily on the opposition’s steadfast — and widely disputed — claims that metzitzah b’peh is safe, or carries what amounts to negligible risk to the infant.

Sidestepping the thorny legal issue of whether this practice is gross as hell is a smart move by the Jones Day and Young Sommer attorneys. It’s a loser and they know it.

But what of their sturdier First Amendment claims? Well, according to Akiva Shapiro of Gibson Dunn, those are losers as well. Shapiro, an “Orthodox Jew and a constitutional litigator with a history of successful suits against the city,” seems particularly well-situated to argue against the potential lawsuits. Writing for Tablet, he first bats down the claim that the new regulation infringes on religious liberty:

The freedom of religion claim can be disposed of easily: The regulation does not, in any way, limit religious practice. A circumcision provider — and to be clear, the regulation applies across the board to anyone performing a circumcision, religious or secular, doctor or mohel — can continue to perform direct oral suction as he did the day before the regulation was passed.

The law only requires that, prior to the circumcision, the parent or legal guardian must give written informed consent….

Seems reasonable and incredibly gross enough. Babies’ weiners still hang limply and microscopically in harm’s way, and this holds true no matter what religion the tiny preverbal baby has pledged allegiance to.

The free speech claim is no more difficult to bat down according to Shapiro. The potential argument would hinge on the idea of compelled speech, but the prohibition against compelled speech deals with something obviously different than the new parental consent rule. Shapiro notes that previous precedent prohibited the state from forcing citizens to speak against their conscience. He writes:

Maynard and Barnette are important First Amendment cases. But they deal with laws that force a religious person to express an opinion or philosophy that is contrary to his religious beliefs. They say nothing about providing factual information regarding potential risks to the recipient of a medical procedure. That body of case law—less well-known, but much more on point (and, I suspect, missing from Agudah’s legal research)—makes clear that the government has broad authority to force those who perform medical procedures to provide such information, on the basis of the government’s fundamental responsibility to protect public safety and health.

This seems obvious. Forcing a baby’s parents to consent to having their children blown and gently pointing out that this may expose their sons to health risk seems eminently reasonable and well within the bounds of constitutional action by the government.

Shapiro ends his article with a few words of advice on picking your battles. In the realm of religious liberty, he says, it is better for the faithful to submit to niggling regulation than to end up like… well, the Mormons:

Just look at Mormons and polygamy. President Lincoln signed into law a ban on polygamy in 1862, but he signaled that he would not enforce the law for a time in deference to Mormons’ religious beliefs, hoping that they would put an end to the practice without government interference. But some prominent Mormons refused, insisting vociferously that their religious practices trumped the law. Some even rose up in civil disobedience.

It didn’t end well for them. In the years following Lincoln’s ban, the federal government stepped in to impose its authority and control by seizing church property and imposing criminal sanctions on polygamists. The church was nearly driven into the ground by the time it abandoned the doctrine of multiple wives in 1890.

There but for the grace of God have gone plenty of religious folks. And there, they have been smacked down.

Definitely read Shapiro’s entire article over at Tablet. And check out the Jones Day letter — signed by a pair of former law clerks to Justice Scalia, partner Shay Dvoretzky and associate Yaakov Roth — over here.

It’s not often that a religious liberty case is so… herpetic. Religion has been called the opiate of the masses, but no doctor I know of has ever accused it of being even a halfway decent antiseptic.

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